Fire Department Not Allowed To Take Blood Draws As Part Of Fitness Program

The Federal Emergency Management Agency (FEMA) created the “Assistance to Firefighters’ Grant Program” to provide funding directly to fire departments for the purpose of protecting the health and safety of the public and firefighting personnel against fire and fire-related hazards. Grant funding was designated for six categories: Training, fitness program, vehicles, firefighting equipment, personnel protective equipment, and fire prevention programs.

In the late 1990s, the Taylor, Michigan Fire Service Joint Labor Management Wellness-Fitness Initiative was created. The project sought to maintain fit, healthy and capable firefighters and EMS responders throughout their careers.

The Taylor Fire Department applied for and received a FEMA grant of $105,400 for its wellness program. The wellness program instituted by the Department included mandatory health appraisals by a local hospital. The appraisal included a mandatory blood draw, which was used to obtain a “Lipid Profile test” to determine levels of cholesterol, triglycerides, HDL cholesterol, VLDL cholesterol, and LDL cholesterol.

A group of firefighters filed a federal court lawsuit against the City, claiming the blood draws violated their constitutional rights. The City asked the Court for summary judgment in its favor, arguing that a series of decisions by the United States Supreme Court on drug testing allowed it to compel the blood draws.

The Court disagreed with the City, and ruled that the blood draws violated the privacy rights of the firefighters. The Court started with the basic assumption that “a collection of blood samples constitutes a search under the Fourth Amendment.” Under such circumstances, the Court observed, the usual rule is that a “search or seizure” must be upon reasonable suspicion of wrongdoing in order to be reasonable, and thus constitutional.

The City based its argument on National Treasury Employees Union v. Van Raab, 489 U.S. 656 (1989), in which the Supreme Court addressed whether a drug-testing program for Customs Service employees was constitutional. The Court noted that the program was not designed to serve the ordinary needs of law enforcement. The Court found that the government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Regarding the employees’ privacy interests, the Court found that the diminished privacy expectations of those front-line customs employees were outweighed by the compelling government interest.

The federal court in the Taylor case found the City’s reliance on Van Raab unpersuasive. The Court observed that “in certain instances, a search or seizure unsupported by probable cause may be constitutional when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable. Only if we can say that the government has made that special need showing do we then inquire into the relative strengths of the competing private and public interests to settle whether the testing requirement is reasonable under the Fourth Amendment. If the government has not made its special-need showing, then the inquiry is complete, and the testing program must be struck down as unconstitutional.”

The Court concluded that the City “failed to establish that there is a special need for the blood draws. The Court finds that there has been no showing by the City that there has been a problem with physically unfit fire and emergency response workers. Other courts have set forth, in the context of drug testing, the importance of determining whether the targeted group exhibits pronounced drug problems. Analogizing the mandatory blood test to drug testing procedures, the Court finds that there is no evidence that firefighters experience pronounced fitness problems. Nor is there is high degree of harm to the public from high cholesterol readings from Plaintiffs.

“The City has not shown any indication of a concrete danger to public safety demanding departure from the Fourth Amendment’s main rule. The instant blood draws were used to determine employees’ cholesterol levels. A cholesterol reading, while an important health barometer, cannot accurately determine the overall physical fitness of an employee as it relates to how that employee is able to respond in an emergency situation. Further, any risk from high cholesterol is likely to take years to manifest. The Court finds that this is not a situation involving a high risk of harm to the public such as an intoxicated employee with a firearm or a drug-impaired train conductor. Thus, the Court finds that the City has failed to articulate a special need for the blood draws.”

Anderson v. City of Taylor, 2005 WL 1984438 (E.D.Mich. 2005).

This article appears in the December 2005 issue